A blog devoted to the criminal laws regulating and punishing sexual violence

April 17, 2007

Adam Walsh Act - Registration Cases

Registration is an area where I expect there will continue to be a great number of opinions in the future. So far, no clear consensus has emerged concerning important challenges to the Act's registration requirements and penalties, but most of the decisions have favored the government. These are the decisions thus far:

US v. Smith, 2007 U.S. Dist. LEXIS 16350 (E.D. Mich. Mar. 8, 2007) – Defendant was indicted for failure to register under SORNA. The court held that 1) statutory construction meant that “travels” is forward looking language so the Act only applied to persons who travel interstate after the effective date of the statute; and 2) the registration requirement’s retroactive application violated the Ex Post Facto Clause.

US v. Manning, 2007 U.S. Dist. LEXIS 12932 (W.D. Ark. Feb. 23, 2007) – Defendant was indicted for failure to register under SORNA. The court held that 1) there are no Ex Post Facto Clause issues under the Supreme Court precedent of Smith v. Doe, 538 U.S. 84 (2003); and 2) there was no constitutional notice issue due to the defendant’s claim that he was unaware that he was required to register under SORNA.

US v. Templeton, 2007 U.S. Dist. LEXIS 8930 (W.D. Ok. Feb. 7, 2007) – Defendant was indicted for failure to register under SORNA. The court held that 1) the Act does not violate the Commerce Clause because the Act targets individuals who travel interstate; 2) the indictment was facially sufficient and set forth the required elements; 3) that the defendant’s crimes were no longer considered sex offenses in Arizona was irrelevant to his obligation to register in Oklahoma; 4) Under the Supreme Court precedent of Smith v. Doe, 538 U.S. 84 (2003), there was no Ex Post Facto Clause issue; and 5) the defendant failed to show any substantive or procedural due process rights affected by the Act.

US v. Madera, 2007 U.S. Dist. LEXIS 3029 (M.D. Fl. Jan. 16, 2007) – Defendant was indicted for failure to register under SORNA. The court held that 1) the Act did not violate the nondelegation doctrine by allowing the Attorney General to decide the Act’s retroactivity; 2) Under the Supreme Court precedent of Smith v. Doe, 538 U.S. 84 (2003), there was no Ex Post Facto Clause issue; 3) the failure to provide a hearing did not raise procedural or substantive due process issues; and 4) the Act did not violate the Commerce Clause because there existed a rational basis between the Act and interstate commerce.

3 Comments

Thanks for posting these cases!

I must say, the continued reliance on Smith v. Doe amazes me. The system the Supreme Court found constitutional showed "no indication that an in-person appearance requirement had been imposed on any sex offender subject to the Act." No longer true. A registrant subject to lifetime registration often must appear at the registry office four times a year, and is subject to at-home, at-work, and at-school face-to-face "checks" by law enforcement at any time (usually monthly). That could add up to 40 in-person "appearances" a year, and that's for someone not subject to the restrictions of probation/parole.

Smith v. Doe also found registrants are "free to move where they wish and to live and work as other citizens, with no supervision." Due to residency, proximity, and employment restrictions enacted since the ruling, and the law enforcement "checks" mentioned above, the court's finding is no longer true.

As a non-lawyer, I'm confused as to how the case can still be used as precedent when the circumstances upon which the ruling is founded no longer exist.

I have, and see within it the same over-reliance on Smith v. Doe as has happened in other cases. SCOTUS thought it significant enough to point out that the Court of Appeals "was under a misapprehension" that the periodic updates must be made in person, and that Doe had provided no evidence in-person updates had been required. Therefore, the Court found no affirmative restraint.

In Hinen, the court found that the "only difference" between the Alaska case and the case before him was...the in-person periodic updates. And then used the Smith v. Doe ruling to uphold what the SCOTUS specifically said did not exist.

Forgive me if I missed it, but I can't find anything in the SCOTUS ruling that says, "Even if a sex offender has to present him/herself to law enforcement in-person, four times a year, for the rest of his/her life, there is no affirmative restraint."

It's judicial hand-waving. It's akin to saying it's all right for law enforcement to search your home without any cause at all because it's legal for them to search if they'd obtained a warrant. After all, both involve the word "search," and therefore must mean the same thing.